Thursday, September 10, 2015

David French on the Obergefell Coup



This is a must read.

Excerpt:

It’s not the first time the Supreme Court has stepped into the most consequential of legal questions, removed them from the Democratic process, and did so by essentially making it all up. The Court’s horrific Dred Scott opinion helped spark the Civil War. Roe v. Wade legalized mass murder. And the instant after each judicial coup, its defenders solemnly invoke the “rule of law” to force the masses to comply. Yet the rule of law requires both lawful enactment and lawful enforcement.
In fact, the rule of law has increasingly become a mere talking point, a weapon wielded by the Courts and the Obama administration when it likes a given legal outcome, but disregarded when pesky things like “democracy” and “procedure” interfere with the demands of social justice. For the Obama administration, even proper regulatory rulemaking can be too burdensome. Rule by executive order or even departmental letter replaces constitutional process, with the social-justice Left cheering every step of the way...
I have deep respect for the rule of law, for our Constitution, and for our federalist democratic traditions. And that’s exactly why I have no respect for Roe, for Obergefell, or for any assertion that enforcing those revolutionary acts represents American constitutional government in action. Kim Davis committed a lawless act. But so did Justice Kennedy. His superior power and influence does not change that salient fact. The American people are indeed “ruled,” but increasingly it is by men, not law.
I disagree by the way that Davis committed a "lawless act"-- she was fully within her Free Exercise rights, and both federal and state law required that her constitutional right to Free Exercise of Religion be accommodated in the least coercive manner (i.e. that the couples be referred to another clerk in another county), which the judge (criminally) failed to do. 

Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan are the people who broke the law. In a just nation they would already be impeached, removed and on trial for violating the constitutional rights of 300 million people. 

Read the whole thing. It is the best analysis I've read of our nation's crisis of democracy and judicial lawlessness. 

30 comments:

  1. "I disagree by the way that Davis committed a "lawless act"-- she was fully within her Free Exercise rights, and both federal and state law required that her constitutional right to Free Exercise of Religion be accommodated in the least coercive manner (i.e. that the couples be referred to another clerk in another county), which the judge (criminally) failed to do."

    I see that you continue to play fast and furious with the facts. The judge that charged Davis with contempt offered her a solution where she could refer SSM licenses to other clerks in the office but she refuse to agree to this compromise. She would not have to issue them personally and her signature was not required on them. But I guess that this fact does not play well with your obsession.

    "I disagree by the way that Davis committed a "lawless act"..."

    Disobeying a court order is a lawless act.

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  2. The rule of law presupposes laws that are lawfully enacted and lawfully enforced. Neither applies to Obgerefell or Bunning's ruling. We are already outside of the rule of law before Davis did anything.

    The judge is required by federal and state law to accomodate Davis' religious belief in the least coercive way possible. His legal option was to instruct the gay lovebirds to drive a few miles to the next county and get "married".

    Failing to do that, and jailing Davis, Bunning broke the law. When does he go to jail?

    ME

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    1. You assert that the Obgerefell ruling was not legal. Five of the supreme court judges disagree with you. The acid test for whether or not something is legal is not whether or not you like the law. It was a legal ruling and binding on all states.

      If you disagree, lobby to have the 14th amendment repealed.

      What about "accommodation" don't you understand. The judge offered her an accommodation by which she would not have to issue the licenses personally, and her signature was not required. She refused this option. This is exactly what you suggested he should have done. And he did it. She was charged with contempt because she refused to agree not to interfere with the deputy clerks in her office from issuing the licenses.

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    2. It was not a legal ruling, as all four dissenting justices pointed out.

      The 14th Amendment does not mandate homosexual marriage, except in Alice and Wonderland.


      The accommodation the "judge" was required to offer was one that would respect Davis' Free Exercise right, which she, not he, defines. She did not want her name to appear on the "marriage license", and the way to accommodate that is to tell the gaystapos to get hitched down the road in another county.

      The 5 "justices" violated the Constitution, the "judge" violated both federal and state law by denying Davis her (real) constitutional right, and Davis didn't violate any law at all..

      There is no law in Kentucky nor any federal law that provides for gay marriage.

      ME

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    3. "It was not a legal ruling, as all four dissenting justices pointed out."

      Decisions are based on the majority, not the minority. That is why there is an odd number of judges (no ties)

      "The 14th Amendment does not mandate homosexual marriage, except in Alice and Wonderland."
      And it does not mandate the equality of blacks, chinese, natives, or any other group. It just guarantees the equality of all citizens, which include homosexuals.

      "The 5 "justices" violated the Constitution,..."

      Assertion not supported by fact.

      "...the "judge" violated both federal and state law by denying Davis her (real) constitutional right,..."

      Again, assertion not supported by fact.

      "...and Davis didn't violate any law at all."

      I agree that not issuing the marriage license may not have violated any law, although it was a violation of her oath of office. But she did violate a court order, which is against the law.

      But I notice that you repeatedly ignore the fact that the judge proposed a reasonable accommodation whereby she would not have to personally issue the licenses, and her signature would not be required on them. In my mind, even this level of accommodation was not necessary, but so be it.

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    4. ["The 14th Amendment does not mandate homosexual marriage, except in Alice and Wonderland."
      And it does not mandate the equality of blacks, chinese, natives, or any other group. It just guarantees the equality of all citizens, which include homosexuals]


      Under traditional marriage law, neither straights nor gays could marry the same sex. The law was applied equally.

      To assert that denying gay marriage is unequal treatment, you must show that the perogative of marrying anyone you want is traditional law, and gays were denied that.

      Marriage has always had legal constraints--no one is legally entitled to marry anyone they want. You can't marry children, yourself, your mom, etc.

      Restricting marriage to opposite sex is no more denial of 14 th amendment to gays than restricting marriage to adults is denial of 14th amendment to pedophiles or restricting marriage to non-blood-related adults is denial of 14th amendment to people who desire incest.

      ME

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    5. As long as the law is applied equally without respect to status (race, sex, sexual orientation, religion), there is no violation of the 'equal protection' clause.

      ME

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    6. Should people be allowed to marry themselves? Doesn't that deny equal protection to narcissists?

      Should people be allowed to marry more than one person? Doesn't that deny equal protection to polygamists?


      The list is endless.

      ME

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    7. Again, you refuse to address the fact that the judge did propose an accommodation to Davis whereby she would never have to issue a SSM licence, or put her signature on one. Why do you keep ignoring this fact?

      She wasn't looking for an accommodation, she was looking for martyrdom. Well, she got it. I hope it makes her feel better.

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    8. Her name would be on the license, which she said violated her right to Free Exercise. I agree.

      All the judge had to do was call the gay nuptuals to the bench and whisper "go to the next county".

      That complies with federal and state law mandating that free exercise be respected unless compelling (and having your license signed by Kim Davis rather than Joe Blow is not compelling).

      But the judge did not comply with the law.

      Kim Davis broke no law, and she is under no moral nor legal obligation to obey an unlawful court order.

      ME

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    9. Eric Holder was found in contempt of Congress for breaking the law by defying a lawful congressional subpoena.

      How much jail time did he serve?

      Why the double standard?

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    10. "Her name would be on the license, which she said violated her right to Free Exercise. I agree."

      Actually, no. Her name would not have to be on it. Check your facts.

      You keep saying that all the judge had to do is direct them to the next county. But you are assuming that they have a car. Why should they have to travel to the next county when nobody else has to do that? That sounds like unequal treatment to me.

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    11. [Why should they have to travel to the next county when nobody else has to do that?]

      The First Amendment and Federal RFRA and Kentucky RFRA.

      [That sounds like unequal treatment to me.]

      Unequal treatment: Obama selectively obeys immigration law, nothing happens. Davis selectively obeys marriage 'law', goes to jail.

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    12. No, Davis selectively disobeys marriage laws.

      Religious freedom isn't, and never was, an absolute. Your freedom ends when it impacts on somebody else's rights. I have no problem with that. Why do you?

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    13. What if you wife went to renew her driver's license and the supervisor was a Muslim of Saudi extraction and told her that it was against his religion to allow women to drive. And refused to let any of his staff process the renewal.

      Would you be OK with that? After all, she could always go to the next county to get it renewed.

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    14. [Religious freedom isn't, and never was, an absolute. Your freedom ends when it impacts on somebody else's rights.]

      Free exercise of religion is the first personal right guaranteed in the Bill of Rights-- before freedom of speech, freedom of the press, freedom of assembly, etc.

      It is the most fundamental American constitutional right.

      It trumps all other rights. Only exception (From Reynolds Supreme Court decision 1878, multiple other decisions, and the federal Religious Freedom Restoration Act and state RFRA'a) is when there is a compelling state interest, and it must be done in the least coercive way possible.

      That's the law, Billy. If you don't like it, talk to Anthony Kennedy, and he'll announce a new law.

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    15. [What if you wife went to renew her driver's license and the supervisor was a Muslim of Saudi extraction and told her that it was against his religion to allow women to drive. And refused to let any of his staff process the renewal.

      Would you be OK with that? After all, she could always go to the next county to get it renewed.]

      Free Exercise of Religion trumps all other rights, period.

      Only one exception: where there is a compelling state interest, and it must be done in the least coercive way possible.

      There is no compelling state interest for my wife to get her license in DMV office A if she can get it in DMV office B.

      I like freedom, and I like diversity, and I respect the law, which protects free exercise of religion.

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    16. [Your freedom ends when it impacts on somebody else's rights.]

      Except abortion, right libtard? Woman has complete right to do as she pleases, and the baby be damned.

      You don't really believe in rights. You have a libtard narrative that substitutes for your religion, and you slavishly worship it.

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    17. Michael,

      A woman has more right to decide what happens to her body than you do. You don't have the right to ban her from having an abortion just because it makes you uncomfortable and because you have the delusion that an immaterial fictional soul is magically implanted in an unfertilised human ovum the moment it's fertilised.

      Delete
  3. Bachfiend,
    You're a liar.
    There's no way of politely saying it.
    You claim to be a pathologist, and you take the position that a human fetus is part of another person? That the fetus is an organ?
    You are lying about one or the other.
    Either a) You're an ignoramus PLAYING at pathologist or...
    b) You're a pathologist who LIES about science to further his nihilistic, elitist worldview.
    Just because I've know a few, I'll go with B.
    An educated, political, if clearly unintelligent and unoriginal liar with a totalitarian bent.

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  4. Rex,

    I'm neither. I accept that a woman has the right to abort unwanted pregnancies up to the stage that the foetus has developed sufficiently to feel pain, which is currently accepted to be 24 weeks. Which is also before the stage of viability.

    My state goes further and limits abortion on demand to 20 weeks, which I think is a reasonable compromise. After 20 weeks abortion is only allowed if there's a health risk to the mother or there's a serious irremediate defect in the foetus.

    Your God (if he exists, which I doubt) is the greatest abortionist around. At least 30% of all pregnancies end in spontaneous abortions, along with the fictional immaterial souls supposedly implanted at conception.

    You're the totalitarian - with your desire to force women to carry pregnancies to term against their will.

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    1. bach:

      The experience, as opposed to the interpretation. of pain is dependent on the thalamus, not the cortex. The cortex permits interpretation and modulation of pain, but the raw experience of pain depends on thalamic, not cortical activity. Decorticated cats feel and react intensely to pain. Chronic pain syndromes are treated with cortical stimulation, which suppresses thalamic activity.

      Lesions of the primary sensory area do not ablate pain, and functional MRI studies don't even consistently show activation of the postcentral gyrus during perception of pain.

      The spinothalamic projections are probably functional before the 10th week.

      Fetuses feel pain more intensely than do adults, because they lack the cortical modulation.

      Stop using your professional training to shill for baby-killers.

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    2. Mike,
      "Stop using your professional training to shill for baby-killers."
      Precisely. Option B.
      Thanks for the info on the neurology of the matter. I had long suspected there was a snowjob in this 'they cant feel anything' argument.

      Bach,
      Dr Egnor has explained in far more technical detail than I could ever muster why your argument from sensation is invalid scientifically.
      The moral or religious aspects are not something I care to discuss with a lying shill like you. Sufficed to say it is a morally bankrupt position you (once again) inhabit.

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    3. Rex,

      Thanks for the comment. The abortion-lovers argument that fetuses don't feel pain is the equivalent to Nazi scientists that Jews don't suffer like Aryans do because they're less human.

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    4. Michael,

      How do you 'know' that decorticated cats 'feel' pain, when all that's being demonstrated is that subconscious reflexes are occurring?

      You're happy to use neuroscience to justify your biases, but completely happy to reject it when it doesn't, as shown by your desperate desire to deny that the split brain phenomenon shows that the mind is material, not immaterial, and capable of being split physically, along with the brain being split through the corpus callosum.

      A foetus before 24 weeks doesn't have a mind. It can't consciously experience pain.

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    5. And I think it's amazing that conservatives are so eager to impute motives to others. I don't encourage abortion. It should be a last resort, not a first resort, as a form of birth control in effect.

      It's an invasive procedure, with significant morbidity. And no - I don't count the morbidity of the foetus, if early, in the calculation.

      I just think that a person has the right to decide what happens to her. And that no one else should be allowed to decide for her, particularly if based on mythical religious reasons.

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    6. Backfield, I agree. It is amazing how many of the same people who support a law to ban all abortions would also support a law to prevent all artificial birth control.

      I read this following analogy over at UD which I think tells the whole story:

      If there is a fire in a fertility clinic and you only have enough time to save a crying baby or a freezer full of blastocysts, which one do you save? To be consistent, a religious pro-lifer would have to say the blastocysts, but they never do. The avoid answering the question.

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    7. William,

      Agreed. I'm still amazed that Egnor attempts to mislead by changing definitions such as the meaning of 'feeling' and bringing up irrelevant facts, such as the postcentral gyrus not being activated in the perception of pain.

      It's actually the insular cortex that's activated. And the posterior cingulate gyrus in the emotional concomitant.

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  5. How sad. A few decades ago, these same people would be arguing that all blacks had to do was go a few doors down to a place where "their kind" would be served.

    Dr Egnor is a disgrace; he is egnorant.

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  6. Dr. Egnor, I thought that you might be interested in a recent news story where someone's religious freedom was upheld.

    A student at Memorial University in Newfoundland, a History major, was enrolled in a history of espionage course. The student is legally deaf and uses a wireless device that professors use to enable him to gear the lecture. The prof, a Hindu, claims that her religion does not allow her to use the wireless device. In short, because of her religious rights, the student cannot take the course.

    But, according to you, the prof's religious freedom means that accommodating her supersedes the university's legal obligation to accommodate the handicapped, and the stident's legal right to an education.

    I am in favour of accommodating religious freedom, but only to the point where they negatively impact someone else's legal right to something.

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